Chief Judge Rodney Gilstrap, U.S. District Court for the Eastern District of Texas/photo by Diego Radzinschi/ALM

Apple Inc. will stand trial for patent infringement starting Aug. 3, COVID-19 or no COVID-19.

So ruled Chief U.S. District Judge Rodney Gilstrap of the Eastern District of Texas on Tuesday, rejecting Apple's and its epidemiological expert's concern that a five-day jury trial would pose "an extraordinary risk" of spreading infection to the participants, "the surrounding community, and the communities to which the participants would be returning."

Gilstrap said he is taking numerous steps to mitigate risks in and around the courtroom. Ultimately, because the outlook for health risks is no better over the next six months, he agreed with plaintiff Optis Wireless Inc. that "on balance" moving forward is the better choice.

"The Court faces a conundrum of first impression," Gilstrap wrote in a nine-page order. "The task of balancing very real public health concerns against the right of the parties to resolve their far-reaching disputes is a challenge this Court has not sought and does not relish. However, as Robert Frost admonished in 'A Servant to Servants,' 'the best way out is always through.'"

Gilstrap has directed that all entrants to the courthouse be screened for COVID-19 risks and symptoms. Inside his courtroom, only three people per side will be permitted at counsel's table, eight jurors will be spread out in a jury box that can accommodate 14, surfaces will regularly be disinfected, and trial counsel and jurors will be directed to wear face shields.

Apple submitted a declaration from Robert Haley, chief of the Division of Epidemiology in the Department of Internal Medicine at the University of Texas Southwestern Medical Center in Dallas, saying that COVID-19 is on the rise in Harrison County, and the safety steps Gilstrap is taking, while helpful, won't be enough to keep everyone safe in the relatively confined Marshall courtrooms. He expressed particular concern about lawyers, paralegals, witnesses and corporate representatives coming together from all over the country for an indoor event.

"Not only would it be challenging to maintain social distance, but a trial, by its very nature, involves a large amount of speaking," Haley stated. "Speaking is one of the main ways that COVID-19 is transmitted from person to person, because COVID-19 spreads by aerosols."

Optis is represented by Irell & Manella and McKool Smith. It accuses Apple of refusing to pay reasonable royalties for standard-essential LTE patents.

Optis says Apple has repeatedly tried to delay the trial, and cautioned that the health outlook will likely be worse, not better, in two months. "Apple hired a doctor to tell the Court to wait to start holding trials until flu seasons starts in the United States," Optis argued in a brief signed by McKool partner Samuel Baxter, "and when independent modeling predicts virus infections and deaths will increase."

Optis also argued that Apple had no right to decide for the citizens of the Eastern District when they can exercise their constitution duty to sit on juries, an argument Apple called "odd" during a flurry of weekend filings that Gilstrap said wasn't authorized.

Apple also argued that "the assertion that the situation could grow worse in two months is not evidence that it is safe to hold a trial today."

The clincher for Gilstrap appeared to be Haley's failure to speculate as to when pandemic conditions might improve. "The Court assumes he does not know and has no way to know," Gilstrap wrote.

Therefore, he wrote, the best course is to proceed while taking safety precautions, "to produce a just, speedy resolution to the parties' disputes while reasonably safeguarding the public health.

"The unpredictability of the state of the pandemic in the future means that a continuance now will result in a delay of many months or even years," Gilstrap wrote. "Nothing in Apple's request assures the Court of anything more than a lengthy, protracted delay, which will simply guarantee material prejudice to all parties."

Optis also accused Apple of interfering with jurors' rights to sit in judgment.